Richmond v. Swinford et al

Filing 74

OPINION AND ORDER GRANTING 62 RULE 56 MOTION to Strike 53 designated evidence (Exhibits 4 and 11) to Response to Motion, filed by David Swinford, Joseph Cinko, Dyer Town of Indiana, Richard Quinn, STRIKING 53 Exhibit Nos. 4 and 11 to Response to Motion, and DENYING 43 MOTION for Summary Judgment on Qualified Immunity filed by David Swinford, Joseph Cinko, Dyer Town of Indiana, Richard Quinn. Signed by Judge Robert L Miller, Jr on 11/20/13. (kjp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ANN RICHMOND,
Plaintiff
vs.
OFFICER DAVID SWINFORD, et al.,
Defendants

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CAUSE NO. 2:12-CV-243 RM

OPINION and ORDER
The defendants in this case — Officer David Swinford and Commander
Joseph Cinko of the Dyer, Indiana, Police Department, Dyer Chief of Police
Richard Quinn, and the Town of Dyer — contend they are entitled to summary
judgment on Ann Richmond’s excessive force claim under 42 U.S.C. § 1983
because they are entitled to qualified immunity. The court disagrees. Because a
reasonable trier of fact could find that Officer Swinford used unreasonable force
to arrest Ms. Richmond and a reasonable police officer would have known it to be
excessive at the time, the court denies the defendants’ summary judgment motion.
The defendants argue that the doctrine of qualified immunity bars Ms.
Richmond’s excessive force claims against Officers Swinford and Cinko. The law
provides qualified immunity to governmental actors performing discretionary
functions unless their conduct violates clearly established statutory or
constitutional rights of which a reasonable person would have known. Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982); Sallenger v. Oakes, 473 F.3d 731, 739 (7th

Cir. 2007). The qualified immunity doctrine allows recoveries for irresponsible
uses of power while allowing those who perform their duties reasonably to be free
from suit. Pearson v. Callahan, 555 U.S. 223, 231 (2009). A qualified immunity
claim requires a court to decide whether, when ordinary summary judgment
standards are applied, (1) the officials’ conduct violated a constitutional or
statutory right, and if so (2) whether, at the time of the violation, the right was so
clearly established that a reasonable official would know the conduct violated that
right. Saucier v. Katz, 533 U.S. 194, 201-202 (2001); Catlin v. City of Wheaton,
574 F.3d 361, 365 (7th Cir. 2009).
The defendants argue that the doctrine of qualified immunity bars Ms.
Richmond’s excessive force claims against Officers Swinford and Cinko. The law
protects government officials from suit or liability for acts that don’t violate clearly
established statutory or constitutional rights known to reasonable officials. Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982). This approaches provides remedies for
injuries inflicted by those who exercise their power irresponsibly while shielding
from suit those government actors who have acted reasonably. Pearson v.
Callahan, 555 U.S. 223, 231 (2009).
Resolution of a qualified immunity defense requires a court to consider
whether the facts, considered in the light most favorable to the plaintiff, show that
the conduct of the government actors — here, Officer Swinford and Commander
Cinko — violated her constitutional rights; if a constitutional right was violated,
the court must decide if that right was clearly established at the time of the
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alleged injury, such that a reasonable officer would understand that his actions
were in violation of that right. Saucier v. Katz, 533 U.S. 194, 201-202 (2001);
Catlin v. City of Wheaton, 574 F.3d 361, 365 (7th Cir. 2009). The specific conduct
in question needn’t have been held unlawful for the violation of the right to be
clearly established, but the specific conduct’s unlawfulness must be apparent in
light of pre-existing law. Anderson v. Creighton, 483 U.S. 635, 640 (1987). A
plaintiff confronting a qualified immunity defense must either identify a closely
analogous case or show that the conduct was so unreasonable and egregious that
no reasonable officer could have thought the conduct to be permissible. Abbott v.
Sangamon County, Ill., 705 F.3d 706, 723-724 (7th Cir. 2013).
Summary judgment is appropriate when, and only when, “the movant
shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A genuine issue of
material fact exists whenever “there is sufficient evidence favoring the nonmoving
party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986). In deciding whether a genuine issue of material fact
exists, “the evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, 477 U.S. at
255.
As a preliminary matter, the defendants move to strike two of the exhibits
Ms. Richmond submitted in opposition to the summary judgment motion. The
“Model Policy” for dealing with the mentally ill must be stricken because the
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record contains nothing to authenticate it. Federal Rule of Civil Procedure 56(c)(4)
requires Ms. Richmond to show that the model policy would be admissible in
evidence, and nothing in this record would allow a trier of fact to find that it is
what Ms. Richmond says it is. See FED R. EVID. 901(a). The police log must be
stricken for the same reason, but the analysis of the summary judgment motion
is the same with or without the police log. Ms. Richmond says the police log shows
that Officer Swinford had her on the ground within two minutes of his arrival on
the scene. Even without the log, the court must accept as true, for summary
judgment purposes, the testimony of Ms. Richmond’s son and an EMT that only
two to three minutes passed before she was taken to the ground. Because the
court also must draw all reasonable inferences in Ms. Richmond’s favor for
summary judgment purposes, she was taken to the ground about two minutes
after Officer Swinford arrived, even when the log is stricken.
It is uncontested that first Officer Swinford, then Commander Cinko, arrived
at Ms. Richmond’s house in response to this call by the police dispatcher:
“Ambulance and PD requested for elderly female subject who’s having a 10-96
episode (possible mental condition) per 10-16 (domestic trouble) at 2301 Calumet
Avenue.” They found Ms. Richmond running barefoot into the yard, waving her
arms and yelling that no one would listen to her. Officer Swinford positioned
himself between Ms. Richmond and the house and tried to calm her down. Ms.
Richmond was between Officer Swinford and Commander Cinko. Ms. Richmond
says she suffers from bipolar disorder and was having a nervous breakdown; the
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summary judgment record indicates that Officer Swinford had some awareness
of her mental health issues (how much is not clear), and the “10-96" reference in
the dispatch alerted him that someone at the scene might be mentally ill. Mr.
Richmond refused Officer Swinford’s directive to get in his car (she eventually was
acquitted of a disorderly conduct charge based on this refusal) and Officer
Swinford moved toward her to handcuff her. Officer Swinford and Ms. Richmond
fell to the ground; Ms. Richmond’s upper left forearm was broken in the fall.
To prevail on her claim at trial, Ms. Richmond will have to show that the
force Officer Swinford used was objectively greater than necessary to arrest her.
Scott v. Harris, 550 U.S. 370, 381 (2007). In making that decision, the trier of fact
will consider the specific situation that Officer Swinford confronted, including the
severity of the crime at issue, whether Ms. Richmond posed an immediate threat
to the safety of the officers or others, and whether Ms. Richmond was actively
resisting arrest or trying to flee. Graham v. Connor, 490 U.S. 386, 396 (1989). The
officer’s awareness of any mental illness on the suspect’s part also is a factor.
Cyrus v. Town of Mukwanago, 624 F.3d 856, 862 (7th Cir. 2010).
To decide whether a reasonable jury could find for Ms. Richmond under that
test on this record, analysis begins with what a reasonable jury could find the
situation facing Officer Swinford to have been. Ms. Richmond can’t deny that she
resisted Officer Swinford’s effort to handcuff her by pulling her hands away. A jury
convicted Ms. Richmond of that charge, and the federal factfinder can’t go behind
that verdict, Heck v. Humphrey, 512 U.S. 477, 484 (1994), but that verdict only
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establishes what Ms. Richmond did when Officer Swinford tried to place handcuffs
on her. It doesn’t resolve how much force Officer Swinford used or intended to
use, or what led to Officer Swinford’s attempt to place her in handcuffs. See
Hardrick v. City of Bolingbrook, 522 F.3d 758, 764 (7th Cir. 2008); Gilbert v.
Cook, 512 F.3d 899, 901 (7th Cir. 2008).
Officer Swinford says that when he arrived, he saw Ms. Richmond push her
father off his feet while coming out of the house. Ms. Richmond and her sons deny
that she knocked her father off his feet (though they agree some contact was
made), and an EMT says he didn’t see Ms. Richmond make any contact with her
father. The defendants say that since the analysis must be made from Officer
Swinford’s perspective and nothing in the record contradicts Officer Swinford’s
testimony that he thought he saw a push, the reasonableness of the force must
be evaluated from the perspective of an officer who believed Ms. Richmond had
just committed a battery on an elderly man.
A reasonable trier of fact could find differently. A jury that credited the
testimony of Ms. Richmond, her two sons, and Dyer EMT Jeffrey Zendzian
reasonably could find that Ms. Richmond didn’t push her father; from that, the
same reasonable jury could find that Officer Swinford couldn’t have seen what
didn’t happen, and so could find that Officer Swinford didn’t believe Ms.
Richmond had pushed her father. The jury that could find that an event didn’t
happen isn’t required to believe Officer Swinford’s testimony that he believed the
event happened. Of course, a reasonable jury might find that Ms. Richmond really
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did push her father off his feet, or that it looked that way from Officer Swinford’s
angle of view. But those possibilities don’t come into play when deciding whether
material issues of fact preclude summary judgment.
Any offensive contact by Ms. Richmond on her father could amount to a
battery under Indiana law, but Officer Swinford says his decision to use force was
based on his belief that he saw her push her elderly father off his feet. Evaluation
of the reasonableness of the use of force needn’t address the possibility that Ms.
Richmond might have committed a crime by brushing past her father, unless that
crime was battery by pushing him off his feet.
Beyond the battery for which she was arrested, Officer Swinford testified
that since an ambulance had been called (he hadn’t been told why), he also had
to consider whether an injured person might be in the house. Such a concern is
objectively reasonable. But when Officer Swinford decided Ms. Richmond needed
to be handcuffed, she wasn’t obstructing him from going to the house to see if
anything was wrong. Officer Swinford had positioned herself between Ms.
Richmond and the house. Ms. Richmond might have pursued him had he turned
to approach the house, but Commander Cinko was no further from Ms. Richmond
than Officer Swinford was. Ms. Richmond was making quite a public scene, but
she wasn’t preventing Officer Swinford from checking to see if anyone was hurt.
Concern that an injured person might be inside is pertinent in another way,
though. Much of Ms. Richmond’s brief is devoted to her thought that Officer
Swinford wasn’t patient enough, that he should have let her vent long enough to
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calm down. Ms. Richmond doesn’t really explain the materiality of how patient
Officer Swinford was or should have been. It’s not for a summary judgment court
to decide that Officer Swinford was as patient as the law requires, but a factual
dispute over patience precludes summary judgment only if the law requires
patience.
Returning to the inquiry under Graham v. Connor, and viewing the evidence
and reasonable inferences in Ms. Richmond’s favor, this is the situation that
Officer Swinford confronted, if all evidence is viewed, and all inferences drawn, as
favorably as reasonably possible to Ms. Richmond:
Severity of the Crime at Issue. The crime Officer Swinford had reason
to think had happened was disorderly conduct: it might reasonably have
appeared that Ms. Richmond refused a lawful order from a police officer.
Officer Swinford might have been concerned that a crime of violence had
been committed in the house, but he was arresting Ms. Richmond for
disorderly conduct. Disorderly conduct is a Class B Misdemeanor under
Indiana law.
Whether Ms. Richmond Posed an Immediate Threat to the Safety of the
Officers or Others. Officer Swinford described Ms. Richmond as “just
throwing her hands up. She was so agitated that she was throwing her
hands up as vigorously as you can imagine and screaming at the top of
lungs, ‘No one’s listening to me,’ over and over.” Officer Swinford reports no

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verbal threats or visible weapons. Commander Cinko was present and
attentive.
Whether Ms. Richmond Was Actively Resisting Arrest or Trying to Flee.
Officer Swinford said he had no chance to tell Ms. Richmond he was
arresting her. It would follow that Ms. Richmond actively resisted arrest (as
established at her misdemeanor trial), but didn’t try to do so until Officer
Swinford attempted to use force.
With this background, the court turns to the level of force that was applied.
Officer Swinford testified that he tried to grab Ms. Richmond’s right wrist, but she
pulled it away and spun to face him. Officer Swinford says he then grabbed her
left wrist and tried to get it behind her back to handcuff her. He says Commander
Cinko tried to control her right arm as he (Officer Swinford) reached for his
handcuffs, but Ms. Richmond continued to struggle, at one point shouldering
Officer Swinford in the chest. Concluding that he and Commander Cinko wouldn’t
be able to handcuff Ms. Richmond without taking her to a prone position on the
ground, Officer Swinford says he tried to use the “arm-bar takedown technique”
that he had learned at the Indiana Law Enforcement Academy. With her right
wrist in his hand, he says, he pushed an agitated Ms. Richmond’s left shoulder
toward the ground, but he lost his balance as she continued to struggle, and both
fell to the ground, with Ms. Richmond’s shoulder giving a loud “pop” on the way
down.

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That might be exactly what happened, but the question at this stage is what
a jury reasonably might find to have happened, and the record contains other
descriptions that might be inconsistent with Officer Swinford’s description. Dyer
EMT Robert Poorenga said Officer Swinford grabbed Ms. Richmond’s wrist and
brought her down in one smooth motion; Ms. Richmond’s son Robert Kingdollar
testified that Officer Swinford brought her to the ground in one continuous
motion, as well. These descriptions create factual questions about whether Officer
Swinford tried to handcuff Ms. Richmond before taking her to the ground. A
reasonable jury could find that in an attempt to arrest an obstreperous woman
who posed no immediate threat to anyone’s safety but who could be thought to
have committed a misdemeanor offense of lesser seriousness, Officer Swinford
tackled her as she tried to struggle free. Applying the law as it is understood
today, that reasonable jury could find that the force Officer Swinford used was
objectively unreasonable.
It remains to decide whether the right Ms. Richmond asserts was clearly
defined at the time. It was. The interaction between Ms. Richmond, Officer
Swinford and Commander Cinko happened on November 22, 2010. In McAllister
v. Price, 615 F.3d 877 (7th Cir. 2010), which was decided on August 12, 2010, the
court of appeals found a triable issue when a jury could find that a police officer
took a suspect to the ground to handcuff him after pulling the suspect (who
actually was in a state of hypoglycemic shock) over for suspected driving while
intoxicated. The McAllister court reviewed three prior cases (two from the circuit
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level and a district court case), none of which presented identical facts, and found
that the right to be free from such treatment was clearly established at the time
of the March 1, 2006 incident. 615 F.3d at 885-886.
For all of these reasons, the court GRANTS the defendants’ motion to strike
designated evidence [docket # 62] and DENIES the defendants’ motion for
summary judgment on the issue of qualified immunity [docket # 43].
SO ORDERED.
ENTERED:

November 20, 2013
/s/ Robert L. Miller, Jr.
Judge, United States District Court

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